FEDERAL CIRCUIT COURT OF AUSTRALIA
SZUWK v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR	[2015] FCCA 165	

Catchwords:
MIGRATION – Refugee Review Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.	

Legislation:
Migration Act 1958 (Cth)
Federal Circuit Court Rules 2001 (Cth) r.44.12, 44.13	

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347	

Applicant:	szUWK	

First Respondent:	minister for immigration & BORDER PROTECTION	

Second Respondent:	refugee review tribunal	

File Number:	SYG 2174 of 2014	

Judgment of:	Judge Emmett	

Hearing date:	27 January 2015	

Date of Last Submission:	27 January 2015	

Delivered at:	Sydney	

Delivered on:	27 January 2015	

REPRESENTATION
The applicant appeared in person with the assistance of an interpreter	

Solicitors for the Respondents:	Mr David McLaren (Sparke Helmore)	

(1)	
FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT SYDNEY	
SYG 2174 of 2014
SZUWK	
Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION	
First Respondent
REFUGEE REVIEW TRIBUNAL	
Second Respondent

EX TEMPORE
REASONS FOR JUDGMENT
1.	On 4 August 2014, the applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal dated 3 July 2014 and handed down on 4 July 2014 (“the RRT”).
2.	On 18 November 2014, the applicant attended a directions hearing before a registrar of the Court. 
3.	The applicant confirmed that he wished to continue with the application for judicial review of the RRT’s decision. The applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit by 19 January 2015. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 19 January 2015.
4.	At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
5.	The matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth), a copy of which was given to the applicant.
6.	Rule 44.12 of the Rules provides as follows:
	“(1)  At a hearing of an application for an order to show cause, the Court may:
	(a)  if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
	(b)  if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
	(c)  without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
	(2)  To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
7.	Relevantly, r.44.13 provides:
	“(1)  At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
8.	The applicant was unrepresented before the court this morning although had the assistance of an interpreter. 
9.	The applicant informed the court that he relied on an affidavit filed by him on 15 January 2015 which attached three documents that post-dated the RRT’s decision record. 
10.	I explained to the applicant that the only issue before this Court was whether or not the decision of the RRT was affected by a mistake that went to its jurisdiction. The applicant confirmed that the three documents attached to his affidavit, filed on 15 January 2015, were not given by him to the RRT. The solicitor for the first respondent, Mr McLaren, objected to the affidavit on the grounds of relevance and on that basis the affidavit was rejected. 
11.	The applicant then confirmed that he relied on the ground of his application. That ground is as follows: 
	“I am not happy with the Department’s decision to refuse my first application. “
12.	Plainly the applicant’s application for judicial review does not identify any error capable of review by this Court. 
13.	In written submissions, the first respondent accurately summarise the applicant’s claims and the RRT’S decision as follows:
	 “Applicant’s claims 
	3. The applicant claimed to fear returning to Bangladesh on the basis of his political opinion. The applicant claimed he was an active member and leader of the Chattra Dal or student wing of the BNP. He claimed he engaged in a program in his local area and gave a speech blaming the Awami League (AL) and the government for the wrongdoing in the country. He claimed he was threatened and attacked following this event, and that his family were assaulted and his house was ransacked. The applicant claimed he then fled to Dhaka.
	4. The applicant also claimed to fear harm at the hands of the police and the Rapid Action Battalion (RAB) because of his political activity. The applicant made post‑hearing submissions to the Tribunal raising a new claim that he feared harm because he changed his religion from “Muslim to Christian”.
	Tribunal decision 
	5. The Tribunal affirmed the delegate’s decision on the basis of comprehensive adverse credibility findings. The Tribunal found that the applicant’s credibility was “so seriously undermined” that there was “no credible or trustworthy evidence before it” upon which it could make a favourable decision (CB 101: [48]).
	6. The Tribunal found that the applicant’s evidence in relation to his motivation for joining the BNP was “not credible”. The Tribunal found that the applicant’s evidence on this point was “at best superficial” noting that the applicant was “unaware of any specific policies” of the BNP (CB 99-100: [37]-[38]).
	7. Further, the Tribunal found the applicant’s evidence about his political activity was “vague and unpersuasive”. The Tribunal noted inconsistencies in the applicant’s evidence about his election as “leader” of the Chattra Dal and found that the applicant’s “knowledge of the party’s goals and policies did not reflect that of an elected official” (CB 100: [39], [42]).
	8. The Tribunal found that the documents submitted by the applicant in support of his claims were not “genuine or reliable” and gave them no weight (CB 100-101: [46]). Further, the Tribunal found that the applicant had “no difficulty” returning to Bangladesh and that these actions were “not consistent with a subjective fear of persecution” (CB 101: [47]).
	9. The Tribunal rejected the applicant’s claim to fear harm because he changed his religion. This was because the claim was made nine days after the hearing and had not been made at any other stage (CB 101: [50]).
	10. For these reasons, the Tribunal found that the applicant’s claim to fear harm on the basis of his affiliation to the BNP and his religion were “not credible” and not well-founded (CB 100-101: [43], [44], [49], [50]).
	11. The Tribunal concluded that the applicant was not a person to whom Australia owes protection obligations (CB 101-102: [48]-[50], [52]). On the same bases, the Tribunal rejected the applicant’s claims under the complementary protection criterion (CB 101-102: [51], [52]). ”
14.	On its face, the applicant’s complain appears to be a complaint about the decision of the Department and the RRT. Such a complaint invites merits review, which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). 
15.	I invited the applicant to say whatever he wished in support of his application this morning. The applicant responded that he had a political problem if he was to return to Bangladesh and that in 2010 he had changed his religion to Christianity. The RRT’s decision record refers to a post-hearing disclosure received by the RRT on 19 June 2014 in relation to which the RRT stated that: 
	“The applicant indicated that he has changed his religion from Muslim to Christian after he got married in PNG. He requested reconsideration by the Department.”
16.	The RRT’s decision record makes clear that it considered the applicant’s claims, advanced nine days after his hearing, that he had converted to Christianity from being a Muslim. 
17.	The RRT comprehensively rejected all the claims made by the applicant based on adverse credibility findings. The RRT stated that: 
	“The applicant’s credibility is so seriously undermined that there is credible or trustworthy evidence before it upon which to make a finding that the applicant is a Convention refugee or that he is a person in respect of whom Australia owes protection or obligations.”
18.	However, based on its comprehensive adverse credibility findings the RRT rejected the applicant’s claim as not credible in the circumstances where it was not introduced until nine days after the hearing and had not previously been raised by the applicant. There appears to be nothing on the face of the decision record to suggest that those findings were not open to the RRT on the evidence and material before it and for the reasons it gave. Credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
19.	It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
20.	While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. Further, the RRT referred to the relevant law in affirming the decision under review. 
21.	In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application on 4 August 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Emmett 

Associate: 

Date: 	29 January 2015